Judge: Cary Nishimoto, Case: BC616313, Date: 2023-02-13 Tentative Ruling
Case Number: BC616313 Hearing Date: February 13, 2023 Dept: SWE
ONESIMO BENITEZ HERNANDEZ AND
MARICELA BENITEZ vs KROGER CO. ETC. ET AL. BC616313. HEARING DATE 1.13.2023,
DEPT SWE. Motion Of Plaintiff For New Trial, DENIED. There is no showing of an
error in law to justify a motion for new trial. Ramirez v USAA Casualty
Insurance Co. (1991) 234 Cal.App.3d 391, 397.There is no admissible evidence of
an enforceable stipulation. In the case of In re Marriage of Kerry, the court
declined to enforce the stipulation “where there is fraud, mistake of fact, or
other special circumstances rendering it unjust to an force the
stipulation.”(1984) 158 Cal.App.3d 456, 465.
In Benavides v Workers’ Comp. Appeals Bd (2014) 227 Cal.App.4th
1496, 1501 there was determined to be an error in the stipulation and the court
declined to enforce the stipulation. In the instant case, defendants’ counsel
made a mistake based on the client’s belief that this was a premises liability
action and not a motor vehicle case. The calendar court ruling permitted
defense attorney to withdraw the stipulation based on CCP §496b, and that
ruling became the law of the case. Plaintiff could have challenged that ruling
but did not do so. In fact, over the balance of the active litigation,
plaintiff refused to change the focus from Alpha Beta to Ralph’s Grocery
despite 3 years of opportunities to do so. Plaintiff’s attorney’s failure to
act was a tactical and strategic decision based on the defendant’s answer to
interrogatories identifying Alpha Beta as the driver’s employer. The
stipulation was found to be a product of mistake of which plaintiff was aware
since 2019. During trial plaintiff sought to make the stipulation a contract
issue, which it was not. The driver in question testified at trial that he was
at all times relevant an employee of Ralph’s. Discovery of the mistake,
early-on in the litigation, gave plaintiff the opportunity to seek court
ordered sanctions which plaintiff never followed up on. Doing so at trial was
untimely. Equitable estoppel would not apply in a case where there was no
concealment of facts but rather a mistake by one party which gave 3 years
notice of the mistake.